The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Before the Court are respondents' motions to dismiss petitioners' three amended petitions for habeas corpus. The petitioners are all third party nationals who have been held in various facilities at Bagram Airfield in Afghanistan for nine years or more. Three years ago, the Court concluded that section 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600, was unconstitutional as applied to these petitioners and that they were therefore entitled to challenge their detentions through habeas corpus petitions. Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 208-09 (D.D.C. 2009) ("Al Maqaleh I"). A year later, the D.C. Circuit reversed that decision, holding that "the jurisdiction of the courts to afford the right to habeas relief and the protection of the Suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war." Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010) ("Al Maqaleh II").

In support of their petition for panel rehearing, appellees, citing evidence not in the record, argue that the government's decision to transfer the Bagram prison facility to Afghan control undermines the rationale of our May 21, 2010, decision.

Our denial of this petition is without prejudice to appellees' ability to present this evidence to the district court in the first instance.

Id. at 1. Petitioners have now returned to this Court to file amended habeas petitions citing that evidence, along with other evidence that they claim "undermines the rationale" of the court of appeals' decision. See Al Maqaleh's Second Am. Pet. for Writ of Habeas Corpus [ECF 63] ("Habeas Pet.").*fn1 Respondents have moved to dismiss the amended petitions. Mot. to Dismiss Am. Pets. for Writs of Habeas Corpus [ECF 64] ("Resp. MTD"). A hearing was held on the motions on July 16, 2012. Subsequently, petitioners filed additional factual materials with the Court on September 24, 2012. Ptrs.' Decls. Filed in Resp. to Court's Order [ECF 83] ("Ptrs.' Supp. Decls."). Respondents filed a response to these materials on October 12, 2012. Resp. to Ptrs.' Supplemental Materials [ECF 84] ("Supp. Resp.").

After carefully considering petitioners' filings and the evidence cited therein, the Court concludes that the petitions must be dismissed. As the many lengthy opinions previously written on this issue attest, determining the scope of a federal court's habeas jurisdiction can be enormously complicated. But given the D.C. Circuit's opinion in this case, the issue now before this Court is quite narrow: whether petitioners' new evidence undermines the rationale of the court of appeals' decision. Consistent with the one other district court that has faced this issue, this Court concludes that the answer to that question is no. See Wahid v. Gates, - F. Supp. 2d -, 2012 WL 2389984 (D.D.C. 2012).

BACKGROUND

This Court's prior opinion fully laid out the facts of these cases, and the Court will not repeat most of those facts here. See Al Maqaleh I, 604 F. Supp. 2d at 209-10. Briefly, the United States has designated all three petitioners as enemy combatants and detained them at Bagram Airfield in Afghanistan ("Bagram"). Fadi al Maqaleh is a citizen of Yemen who claims to have been captured at an unspecified location outside of Afghanistan, although respondents dispute this. Id. at 209-10. Amin al Bakri is also a citizen of Yemen and was captured in Thailand. Id. at 209. Redha al-Najar is a citizen of Tunisia who was captured in Pakistan. Id. Each petitioner contests his designation as an enemy combatant and seeks to challenge his detention through a habeas corpus petition. Id.

The legal framework governing the scope of habeas corpus jurisdiction is set forth in Boumediene v. Bush, 553 U.S. 723 (2008). There, the Supreme Court first determined that section 7 of the MCA, 28 U.S.C. § 2241(e), denied federal courts jurisdiction over the habeas petitions of enemy combatant aliens detained abroad. Id. at 736. The Court then turned to the question whether MCA § 7 unconstitutionally suspended the writ of habeas corpus as applied to detainees at Guantanamo Bay. Id. at 733, 739. The Court explained that "at least three factors are relevant in determining the reach of the Suspension Clause":

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

Id. at 766. After weighing these factors, the Supreme Court concluded that detainees held at Guantanamo were entitled to bring habeas corpus petitions in the federal courts. Id. at 798.

This Court and the D.C. Circuit both recognized that Boumediene's three-part test applies to this case. In applying the test to the facts here, the D.C. Circuit reached the following conclusions. First, the court held that the "citizenship and status" factor supported petitioners' argument that they were entitled to bring habeas petitions, because the petitioners were similarly situated to the detainees at Guantanamo. Al Maqaleh II, 605 F.3d at 95-96. With respect to the "adequacy of process" factor, the court of appeals found that the petitioners actually had a stronger claim for entitlement to the writ than did the Guantanamo detainees, because the procedural protections then afforded to detainees at Bagram were even weaker than those at Guantanamo. Id. at 96.

But the court of appeals found that the second factor, "the nature of the sites where apprehension and then detention took place," weighed "heavily in favor" of the respondents. Id. In the court's view, there was a vast difference between Guantanamo -- "a territory that, while technically not part of the United States, is under the complete and total control of our Government," id. (citations omitted) -- and Bagram Airfield, where "there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the 'host' country." Id. at 97. Given those differences, the D.C. Circuit found that "the United States [may have] de facto sovereignty over Guantanamo" but that "the same simply is not true with respect to Bagram." Id. Hence, the court concluded that the Suspension Clause was far less likely to apply at Bagram. Id.

The court of appeals then found that the third factor, "the practical obstacles inherent in resolving the petitioner's entitlement to the writ," weighed "overwhelmingly" against the petitioners. Id. The court stressed that Bagram was located in a "theater of war" where "active hostilities" were still being conducted. Id. The court saw three critical problems with allowing detainees at such a site to bring habeas petitions. First, the court worried that habeas litigation would "'divert . . . efforts and attention from the military offensive abroad to the legal defensive at home.'" Id. at 98 (quoting Johnson v. Eisentrager, 339 U.S. 763, 779 (1950)). The court was also wary of "'judicial interference with the military's efforts to contain enemy elements, guerilla fighters, and were-wolves.'" Al Maqaleh, 605 F.3d at 97 (quoting Boumediene,128 S. Ct. at 2261). In addition, the court observed that "'the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.'" Id. at 98 (quoting Eisentrager, 339 U.S. at 779). The court of appeals emphasized that the Supreme Court in Boumediene had expressly noted that the outcome in that case might have been different "'if the detention facility were located in an active theater of war,'" id. at 97-98 (quoting Boumediene, 553 U.S. at 770), and indicated that Bagram's location was a critical factor in its decision.

Finally, the D.C. Circuit wrote that it did "not ignore the arguments of the detainees that the United States chose the place of detention and might be able to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will." Id. at 98 (internal quotation marks and citations omitted); see Boumediene, 553 U.S. at 765. But, the court of appeals concluded, "that is not what happened here." Al Maqaleh II, 605 F.3d at 99. Explaining its view that manipulation had not occurred, the court wrote:

[T]he notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to "turn off the Constitution" would have required the military commanders or other Executive officials making the situs determination to anticipate the ...

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